UN Tribunal Weakens Whistleblowers’ Rights

(Washington, DC) – Over Labor Day weekend, the United Nations Appeals Tribunal (UNAT) issued a decision in the whistleblower protection appeal of Government Accountability Project (GAP) client* James Wasserstrom, a former senior staff member at the U.N. Interim Administration Mission in Kosovo (UNMIK). In overturning the strongly worded decision of the U.N. Dispute Tribunal (UNDT) in Mr. Wasserstrom’s favor, the UNAT has eviscerated UNDT’s precedent protecting whistleblowers and has significantly weakened their rights within the U.N.’s internal justice system.

U.N. Whistleblowers will not be able to challenge the Ethics Office

In its decision, the UNAT applied its previous restrictive rulings that only certain “administrative decisions” by specific U.N. entities confer jurisdiction on the UNDT to entertain staff complaints. In Wasserstrom’s case, UNAT determined “recommendations” made by the U.N. Ethics Office – the unit established to protect U.N. whistleblowers – are not administrative decisions subject to judicial review by the UNDT. As a result of this precedent, U.N. whistleblowers will no longer be able to challenge the decisions of the Ethics Office, an admittedly dubious channel for redress, which has historically failed to protect 99 percent of the whistleblowers who have sought its support, including Wasserstrom. Without a clear and effective procedure for protecting whistleblowers, the United Nations fails to meet international best practices.

“This Labor Day weekend, the United Nations significantly weakened the rights of its own employees,” said GAP international program consultant Shelley Walden. “As a result of this judgment, some cases filed by U.N. whistleblowers will likely be thrown out by the Tribunal. This judgment may also further exacerbate the chilling effect that prevents U.N. employees from speaking out about misconduct. This is a sad day for whistleblowers and those who wish the U.N. was more accountable and effective.”

The judgment (2014-UNAT-457) was by majority with Judge Faherty dissenting. The majority reversed the judgments on liability and relief made in Wasserstrom’s favor by UNDT. The judges unanimously upheld an award of $15,000 in costs against the Secretary-General for having abused the judicial process by refusing to comply with the production and discovery orders.

Whistleblowers: Corrupt U.N. officials impunity

“With this judgment, the walls of impunity surrounding U.N. officials engaged in corruption have been further fortified,” Wasserstrom said. “Neither the Secretary General nor some of the key offices who serve him, including the Office of Internal Oversight Services (OIOS) and the Ethics Office, have demonstrated a credible interest beyond words in protecting the brave individuals who come forward after witnessing wrongdoing. The U.S. State Department and the U.S. Congress should consider this UNAT decision as all the evidence they need to act on the withholding requirement of U.S. law.”

As a consequence of this judgment, the U.N. plainly seems to be in violation of the 2014 U.S. Consolidated Appropriations Act, Section 7048 (a)(1)(b). According to this law, 15 percent of the U.S. contribution to the United Nations or any U.N. agency shall not be obligated until the Department reports that it is implementing best practices for whistleblower protection, including “(i) protection against retaliation for internal and lawful public disclosures; (ii) legal burdens of proof; (iii) statutes of limitation for reporting retaliation; (iv) access to independent adjudicative bodies, including external arbitration; and (v) results that eliminate the effects of proven retaliation.”

UNAT did not consider the merits of Mr. Wasserstrom’s retaliation claims and therefore he did not receive comprehensive relief from retaliation. Moreover, this decision will make it even more difficult for other U.N. whistleblowers to receive results that eliminate retaliation. Many whistleblowers previously believed that they could file only with the Ethics Office – which has a much longer statute of limitations for reviewing retaliation claims than the formal justice system – and wait for its decision before seeking relief from UNDT. But since the UNAT judges decided this is not the correct procedure, these cases will likely be dismissed.

Future whistleblowers

Future whistleblowers will have to file claims before UNDT within 60 days of the alleged retaliation to preserve their rights. But in GAP’s experience, most whistleblowers are not aware of their rights or the full extent of retaliation within that time frame. This 60-day limit is a clear violation of best practices in whistleblower protection, which require at least a six-month statute of limitations to challenge retaliatory decisions through formal channels.

“This verdict provides further evidence of the United Nations’ failure to comply with the 2014 U.S. Consolidated Appropriations Act,” Walden said. “The State Department cannot, in good conscience, claim that the United Nations meets best practices in whistleblower protection.”

GAP continues to stress that all U.N. whistleblowers who suspect they were retaliated against must file a request for management evaluation within 60 days of the retaliatory decision, should they hope for a hearing before the U.N.’s Dispute Tribunal. Filing with the Ethics Office is not a substitute for that jurisdictional step. For more information on this timeline, click here. Whistleblowers can also appeal decisions made by the various ethics offices in the U.N. system to the U.N. Ethics Committee (per ST/SGB/2007/11), but that avenue is unlikely to be of much use to U.N. Secretariat whistleblowers, as the committee is chaired by the head of the Secretariat’s Ethics Office.

The UNAT is the court of last resort in the U.N. internal justice system, and its decisions are final and binding.

Whistleblowers’ Rights: Background

While assigned to the U.N. peacekeeping operation in Kosovo (UNMIK), Wasserstrom blew the whistle on what he alleged was a conspiracy to pay a $500 million kickback to senior U.N. and Kosovo officials. After disclosing this information lawfully, Wasserstrom’s assignment was not extended, his passport was confiscated, his car and his apartment were searched, he was subjected to administrative and criminal investigations – the details of which were discussed publicly by U.N. and UNMIK press officers in violation of U.N. policy – and his photograph was placed at the entrances of his former workplace, to deny him access to the premises.

After the Ethics Office failed to protect Wasserstrom from serious and protracted retaliation, he filed a case with UNDT. The Tribunal found in his favor, concluding that the institution’s treatment of him was “appalling” and that the Ethics Office made a “fundamentally flawed” decision when it failed to substantiate retaliation. In a subsequent decision, however, the UNDT awarded him only $65,000, less than 2 percent of his estimated losses, damages and costs. The Secretary General appealed the UNDT’s finding of liability and the damages award, while Wasserstrom appealed only the latter. The UNAT exceptionally agreed to Wasserstrom’s application for oral arguments on his case and a hearing was held on June 19. The UNDT judgments in Wasserstrom’s case are available here and here.

*NOTE: While GAP did not represent Mr. Wasserstrom in his litigation before the UNAT or the UNDT, it is working with him to press his case with oversight bodies, including U.S. congressional committees.

About the Government Accountability Project

The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a nonprofit, nonpartisan advocacy organization based in Washington, D.C.